BVA9501053
DOCKET NO. 93-07 179 ) DATE
)
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On appeal from the decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUES
1. Entitlement to an increase in the 20 percent evaluation
currently assigned for healed fracture of the neck of the right
femur with hip disability.
2. Entitlement to a total rating for compensation purposes based
on individual unemployability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Christopher Maynard, Associate Counsel
INTRODUCTION
The veteran had active duty for training from October 1963 to
April 1964.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an August 1991 rating decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected right leg
disability is more severe than is reflected by the 20 percent
evaluation currently assigned. He reports pain and giving way of
the right leg after prolonged activity.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the evidence favors the grant of an increased rating,
to 30 percent, for healed fracture of the neck of the right
femur.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the RO.
2. The veteran's right lower extremity disability is manifested
principally by complaints of pain, weakness, limitation of motion
and degenerative joint disease of the right hip, which equates to
marked disability.
CONCLUSION OF LAW
The schedular criteria for an increased rating to 30 percent for
healed fracture of the neck of the right femur are met.
38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321,
4.3, 4.7, 4.71a, Code 5255 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that the veteran's claim for an increased rating
is well grounded within the meaning of § 5107, and is satisfied
that all relevant facts have been properly developed in
accordance with this law.
I.
By rating action dated in February 1966, service connection was
granted for fracture of the neck of the right femur based on VA
medical records showing hospitalization in November 1965
following an automobile accident while the veteran was driving to
a scheduled drill for inactive duty for training. The veteran
was initially assigned a 100 percent rating under the provisions
of 38 C.F.R. § 4.29 for hospitalization and then § 4.30 for
convalescence to August 1, 1966, when the rating was reduced to
60 percent. By rating action dated in June 1967, the rating was
reduced to 10 percent, effective September 1, 1967, and that
rating remained in effect until the February 1991 rating decision
which granted an increased rating to 20 percent, effective
September 25, 1990.
Injuries sustained in the automobile accident in November 1965
included a comminuted fracture of the neck of the right femur
with marked displacement of fragments and marked upward
displacement of the femur and trochanter, closed. The veteran
underwent open reduction and internal fixation without
complication at a VA medical facility in November 1965.
Postoperative course was uneventful and the veteran was
discharged on January 5, 1966. (See November 16, 1965, to
January 5, 1966 VA hospital report.)
On VA examination in March 1966, there was a 10-inch, well-healed
longitudinal scar of the right hip and thigh. The right thigh
was 1 inch smaller in circumference then the left and the right
calf was 1 1/4 inches smaller in circumference then the left.
X-ray studies of the pelvis and right hip showed an old healed
fracture of the neck of the right femur. There were six metallic
nails inserted upwards through the trochanteric portion of the
femur into the neck and head of the femur holding the fragments
in good position during bony union. There was evidence of
absorption of the neck of the femur with shortening. The
diagnoses included old fracture of the neck of the right femur
with internal fixation.
On VA examination in May 1967, the veteran complained of pain in
his low back and of the right thigh and knee for the past year.
On examination, the veteran reported right hip pain on lateral
bending. Straight leg raising was possible to 40 degrees on the
right with pain reported in the right hip and low back. Left
straight leg raising was possible to 80 degrees without pain.
Circumference of the thighs and calves were equal bilaterally and
the scar on the right hip and thigh was well healed. X-ray
studies of the pelvis and right hip showed the fragments were
well healed and in good position. The diagnoses included healed
fracture of the neck of the right femur.
When examined by VA in December 1990, the veteran complained of
chronic pain in his right hip. On examination, the veteran
walked with an antalgic gait on the right hip. He had
approximately a 10-degree flexion contracture of the right hip
and was able to flex it up to 70 degrees. There was no internal
rotation and external rotation was possible to 5 degrees. There
was abduction at 20 degrees and adduction to 20 degrees. There
was a well-healed surgical scar at the lateral border of the
right hip. X-ray studies of the right hip showed the old
fracture was well healed with multiple pins across the hip
fracture with one of the pins possibly intruding into the hip
joint. There was significant hypertrophic bone formation and
degenerative joint disease on both sides of the right hip joint.
The diagnoses included severe degenerative joint disease of the
right hip secondary to the hip fracture with painful limitation
of motion.
When examined by VA in February 1992, the veteran complained of
right hip pain radiating into his right leg and lower back area.
The veteran described numbness in both lower extremities, the
right greater than the left and some numbness in both hands. The
veteran denied any sphincter disturbance. On neurological
examination, strength was 5/5 in all muscle groups in the lower
extremities with allowance for pain in the right lower extremity.
Deep tendon reflexes were 2/4 in the patella and 1/4 in the
Achilles. Plantar responses were flexor and there were no
sensory deficits in the right lower extremity. The examiner
noted that previous workups included a lumbar myelogram, which
was unremarkable, and an electromyogram (EMG), which showed mild
peripheral neuropathy with no evidence of radiculopathy.
The evidentiary record reflects increased symptomatology
manifested by chronic pain in the veteran's right hip and leg, a
flexion contracture, right lateral femoral cutaneous neuropathy
(probably secondary to the right hip injury), and significant
limitation of motion of the right hip. The degenerative joint
disease of the hips has been characterized as severe. Although
there is good muscle strength in the right lower extremity and
X-ray studies showed the fracture site was well healed with no
evidence of avascular necrosis of the femoral head, the Board
finds that, overall, the veteran's symptoms are reflective of
marked hip disability. Thus, an increased rating to 30 percent
under Diagnostic Code 5255 is warranted.
ORDER
A 30 percent evaluation for healed fracture of the neck of the
right femur is granted, subject to VA laws and regulations
concerning payment of monetary benefits.
REMAND
In light of the Board's decision granting an increased rating to
30 percent for healed fracture of the neck of the right femur,
further development is necessary for the issue of a total rating
for compensation purposes based on individual unemployability.
Additionally, in his substantive appeal received in February
1992, the veteran indicated that he was told by a VA physician
that he was not able to work because of his service-connected
disability. The Board also notes that the veteran's complaints
include low back pain radiating into his lower extremities which
he attributes to his service connected disability, and that a
November 1989 treatment note reflects that the veteran was seen
for right knee complaints and the diagnosis was possible early
degenerative joint disease secondary to hip fracture. The
veteran has also reported that his hip disability affects his
mental capabilities. This raises the possibility of an
inextricably intertwined issue or issues which should be
addressed by the RO. Accordingly, the case is REMANDED to the RO
for the following action:
1. The RO should take appropriate steps to
obtain copies of all of the veteran's
treatment records at the Charleston, South
Carolina, VA Medical Center for the period
1991 to the present. Of particular
interest is any medical report from D. S.
Rogers, M.D., from the neurology clinic at
that facility. Treatment records during
this time period from any other VA facility
should also be obtained. All obtained
information should then be associated with
the claims folder.
2. The veteran should be afforded VA
examinations by appropriate specialists in
orthopedics and neurology in order to
determine the current status of his right
leg disability. All indicated testing
should be performed, including range of
motion studies of the right hip, leg and
knee. The findings should be described in
detail and the examiners are requested to
comment on the relationship, if any, of the
veteran's low back complaints and his
service-connected right leg/hip disability.
The examiner should also be asked to offer
an opinion, with reasoning set forth in
detail, as to whether the service-connected
right hip disability prevents the veteran
from obtaining or retaining employment.
The examinations should be performed in
accordance with the guidelines set out in
the Physician's Guide for Disability
Evaluation Examinations (IB-11-56, March 1,
1985). The findings should be typed or
otherwise recorded in a legible manner for
review purposes.
3. After the requested development has
been completed, the RO should again review
the record. This should include initial
adjudication and procedural development of
any intertwined issue, if identified.
Thereafter, the veteran and his
representative should be furnished with a
supplemental statement of the case and
given an opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order, for review of all issue(s) for which a notice of
disagreement has been filed. The Board intimates no opinion as
to the ultimate outcome of this case. The veteran need take no
action unless otherwise notified.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).